State v. Jones

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NOT DESIGNATED FOR PUBLICATION

No. 116,847

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER ALLEN MICHAEL JONES,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed December 1,
2017. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Angela C. McDaneld, legal intern, Lesley A. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before GARDNER, P.J., GREEN, J., and MERYL D. WILSON, District Judge, assigned.

PER CURIAM: Christopher Allen Michael Jones entered into a plea agreement in
which he pled guilty to one count of indecent liberties with a child. Granting a
dispositional departure, the district court sentenced him to 36 months' probation with an
underlying prison sentence of 120 months. After finding Jones violated the terms of his
probation, the court revoked his probation pursuant to the public safety provision in
K.S.A. 2016 Supp. 22-3716(c)(9). On appeal, Jones argues that the particularity
requirements of the statute were not met and that an intermediate sanction was
appropriate. Finding no error, we affirm.
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The state charged Jones with one count of contributing to a child's misconduct and
two counts of aggravated indecent liberties with a child after the victim, his 15-year-old
girlfriend, was found staying with and engaging in sexual intercourse with Jones, who
was 21 years old. Pursuant to a plea agreement, Jones pled guilty to one count of indecent
liberties with a child, a severity level 5 felony. Jones' offense and criminal history score
of B called for a presumptive prison term between 114 and 128 months. However, the
court granted the defense's motion for dispositional departure, citing, among other things,
a less-than-typical degree of harm and Jones' age and maturity level. Jones was
sentenced to 36 months' probation with an underlying prison sentence of 120 months.
Jones' probation came with several requirements, including completing sex offender
treatment, updating any change in employment, residence, or phone number with the
probation office, obtaining and maintaining full employment, and following all sex
offender conditions provided by Community Corrections. Additionally, Jones was
prohibited from contact with the victim or any person less than 16 years old.

On August 24, 2016, the district court issued a warrant for Jones for violating the
terms and conditions of his probation. The violations were as follows:

"1. On July 29, 2016, the defendant reported staying at the Union Rescue Mission
beginning July 28, 2016. The defendant failed to notify the Offender Registration
unit within three days as required.
"2. On August 3, 2016, the defendant reported his current address listed on this
warrant to his ISO but failed to notify the Offender Registration Unit within three
days as required.
"3. On August 10, 2016, Ron Kempf, Shelter manager with the Union Rescue
Mission, confirmed for ISO that the defendant did not check in there from July
31–August 2, 2016. The defendant's whereabouts were unknown during this time
and he failed to report a change of address within 24 hours as directed.
"4. The defendant failed to perform and provide verification for job search activities
as directed by his ISO for the weeks of July 31–August 20, 2016.
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"5. On August 17, 2016, the defendant violated his sex offender condition of internet
usage by posting five (5) adult job ads listed on backpage.com
"6. On August 19, 2016, ISO Clark and Poole conducted an on-site residence
verification to the defendant's reported address of 2719 S. Emporia St. #905,
Wichita, KS 67216. A female, Alyssa Bush, whom the defendant resides with
confirmed for ISO Clark and Poole that she has a son that is one years of age in
the same residence. The defendant is not to have any contact with children under
the age of 16 and failed to report that there was a child present on his residence
record.
"7. On August 19, 2016, the defendant reported to his ISO that he has already
updated his address with the Offender Registration Unit and that he did so a few
days prior to this date. On August 23, 2016, Deputy K. Lovinger confirmed for
ISO that the defendant last updated his address on July 27, 2016.
"8. As of the filing date of this warrant, the defendant has not obtained or provided
proof of obtaining a sex offender evaluation as court-ordered."

At the probation violation hearing, the court found Jones voluntarily waived his
right to a hearing to contest the allegations and that he admitted to all allegations except
allegation number 7, stated above. The defense offered an account of Jones' situation and
the events that occurred after the sentencing hearing. The defense explained that although
Jones was sentenced to probation in this case in August 2014, he was incarcerated in
Oklahoma until July 2016—leaving less than two months between his release and the
probation violation hearing to comply with the requirements of his probation. Upon his
release from incarceration, Jones was homeless. For part of that time, Jones stayed with a
family that had a small child, although Jones claims they knew of his status as a
convicted sex offender and consented to him living with them. The defense recounted the
difficulties Jones had finding employment. Finally, the defense noted that Jones found
out upon release from incarceration that he had a two-year-old child with the victim in
the underlying case.

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The court first responded by recalling that Jones came to court with a B history,
and that the underlying felony is a severity level 5 sex offense with a presumed prison
sentence. Then the court said that while it would have been difficult for Jones to complete
sex offender treatment during the period after incarceration, there was no evidence that he
attempted to begin treatment. The court added that there was also no verification that
Jones was seeking any legitimate employment opportunities. The court expressed further
alarm with Jones' failure to update his address, his sexually oriented advertisements on
the internet, and that he was living with a young child. The court revoked Jones'
probation, stating:

"I don't have any indication that granting you additional time would result in any
different outcome here.
"So the Court will revoke the probation, impose the underlying sentence. I will
find pursuant to 22-3716(c)(9) that the safety of the members of the public will be
jeopardized by Mr. Jones remaining on probation. Specifically, I will find that he's a sex
offender, that he does not have employment, that he was not actively seeking
employment or at least we have no verification of that. He was not actively seeking
treatment, or at least we have no verification. He was living with a child when he was
strictly prohibited from doing so, that child being under the age of 16. And finally, there
were periods of time where we didn't know where Mr. Jones was. Those things lead me
to believe that the public is not safe with Mr. Jones at large anymore."

Jones now appeals, claiming the district court abused its discretion in revoking
probation without first applying intermediate sanctions.

Did the district court abuse its discretion when it revoked Jones' probation instead of
imposing intermediate sanctions?

The defense first argues the lower court violated Jones' due process rights by
revoking his probation without first imposing intermediate sanctions, which would
provide this court with unlimited review. The defense also argues that should the court
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find Jones' due process rights were not violated, the court committed reversible error by
revoking Jones' probation.

When reviewing whether a district court complied with due process requirements
when revoking probation, the appellate court has an unlimited standard of review. State v.
Hall, 287 Kan. 139, 143, 195 P.3d 220 (2008). Among other things, due process requires
the defendant be aware of the terms and conditions of probation, that the terms and
conditions of probation be clear and specific, and upon violation allegations, that the
defendant receive fair, written notice of the alleged violations. The alleged violations
must be sufficiently specific to allow the defendant to fully respond. State v. Scott, No.
115,432, 2017 WL 2210442, at *3 (Kan. App. 2017). Here, the lower court did not
violate Jones' due process rights. Jones was given sufficiently clear terms of his
probation, as well as written notice of the alleged violations. The probation violation
warrant detailed the list of alleged violations, and Jones was given the opportunity to
respond to the allegations in court.

Because Jones' due process rights were not violated, the issue is whether the
district court erred in bypassing intermediate sanctions and revoking Jones' probation.
Where the issue is the propriety of the sanction imposed by the district court for a
probation violation, the standard of review is unlimited. State v. Rocha, 30 Kan. App. 2d
817, 819, 48 P.3d 683 (2002). A district court may revoke probation upon a factual
finding that the terms of probation were violated. State v. Walker, 260 Kan. 803, 808, 926
P.2d 218 (1996). The decision to revoke probation is within the discretion of the district
court. Swope v. Musser, 223 Kan. 133, 136, 573 P.2d 587 (1977). A judicial action
constitutes an abuse of discretion if (1) no reasonable person would take the view adopted
by the trial court; (2) it is based on an error of law; or (3) it is based on an error of fact.
State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015). The party asserting the trial
court abused its discretion bears the burden of showing such abuse of discretion. State v.
Rojas-Marceleno, 295 Kan. 525, 531, 285 P.3d 361 (2012).
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Probation Revocation

The district court's ability to revoke probation is limited by state statute. K.S.A.
2016 Supp. 22-3716(c)(1)(A)-(E) provides a system of intermediate sanctions the court
must impose on an individual who violates the conditions of his or her probation. Part of
that statute, though, allows the court to revoke probation instead of applying intermediate
sanctions if it "finds and sets forth with particularity the reasons for finding that the safety
of members of the public will be jeopardized or that the welfare of the offender will not
be served by such sanction." K.S.A. 2016 Supp. 22-3716(c)(9)(A).

To satisfy the particularity provision, the court's findings must be specific and
must contain sufficient detail. State v. Huskey, 17 Kan. App. 2d 237, Syl. ¶ 2, 834 P.2d
1371 (1992). Mere conclusory statements regarding probation violations do not meet the
particularity requirement of the statute. State v. McFeeters, 52 Kan. App. 2d 45, 48-49,
362 P.3d 603 (2015). Instead, the district court must state the connection between the
reasons for revoking the defendant's probation and the danger the defendant poses to the
offender's welfare or to public safety if he or she remains on probation. State v. Miller, 32
Kan. App. 2d 1099, 1102-03, 95 P.3d 127 (2004). To make the connection, the findings
must specifically articulate the reasons public safety will be jeopardized without revoking
probation. State v. Davis, No. 111,748, 2015 WL 2137195, at *3 (Kan. App. 2015)
(unpublished opinion).

In this case, the district court set forth with particularity its reasons for finding that
public safety would be jeopardized and Jones' welfare would not be served by imposing
intermediate sanctions. The court's statements referenced public safety and Jones' own
welfare multiple times:


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"My strong belief is people who are busy stay out of trouble. You wouldn't verify
all that.
". . . So I do know some of what you were doing during that period, and I do
know many of the things that you were supposed to be doing that you weren't doing.
. . . .
"Essentially this whole case is going the wrong direction. When I look at that and
the background of having a B history, your background in this case as a Level 5 sex
offender, I don't see that I have a whole lot of choice here. You stated that you wanted
additional time, and I don't have any indication that granting you additional time would
result in any different outcome here.
". . . I will find pursuant to 22-3716(c)(9) that the safety of the members of the
public will be jeopardized by Mr. Jones remaining on probation. Specifically, I will find
that he's a sex offender, that he does not have employment, that he was not actively
seeking employment or at least we have no verification of that. He was not actively
seeking treatment, or at least we have no verification. He was living with a child when he
was strictly prohibited from doing so, that child being under the age of 16. And finally,
there were periods of time where we didn't know where Mr. Jones was. Those things lead
me to believe that the public is not safe with Mr. Jones at large anymore."

These are more than conclusory or general statements. Although some of the
violations had little bearing on public safety, the findings that Jones was not seeking
treatment and was not employed, was living with a child under the age of 16, and was
posting sexually oriented advertisements on the internet, fully explain why public safety
would not be served by imposing intermediate sanctions. The statements specify the
potentially dangerous impact on public safety if Jones was allowed to remain on
probation. Additionally, the court made statements referencing Jones' own welfare,
expressing concern that he was not staying busy with work and that he was involved in
problematic activities.

This court has addressed cases with similar issues. The facts of this case are
different from those in Padgett and Wesley, and similar to the facts in Dreier and
Harding. In State v. Padgett, No. 94,695, 2006 WL 3257450, at *1 (Kan. App. 2006)
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(unpublished opinion), the district court did not meet the particularity requirement when
it said that incarceration may be necessary "to get people on the right path," but did not
connect the intermediate sanctions to public safety or the defendant's own welfare. In
State v. Wesley, No. 111,179, 2015 WL 3868716, at *5 (Kan. App. 2015), the lower court
also did not make a sufficient connection between imposing intermediate sanctions and
an increased risk to public safety when it discussed the applicable criminal history score
and stated that the nature of the underlying crimes, but not the probation violations,
showed a disregard for public safety.

Conversely, in State v. Dreier, 29 Kan. App. 2d 958, 960, 34 P.3d 480 (2001), the
district court stated the defendant's drug use would harm both the defendant and society.
This connection was sufficient for the particularity requirement because it iterated that
not revoking probation would jeopardize public safety and the defendant's welfare.
Dreier, 29 Kan. App. 2d at 960. In State v. Harding, No. 110,677, 2014 WL 3630554
(Kan. App. 2014) (unpublished opinion), the judge articulated that the combination of the
nature of the crimes and violations, criminal history, and the defendant's inability to
comply with the terms of probation "rise to the level that [the defendant is] a threat to the
public safety and to [himself]." This finding was enough to satisfy the particularity
requirement under the statute because it linked the probation revocation with public
safety and the defendant's welfare. Harding, 2014 WL 3630554, at *5.

Like in Harding and Dreier, the district court in this case made the sufficient
connection that allowing Jones to remain on probation would jeopardize both public
safety and Jones' own welfare. The district court's findings satisfy the particularity
requirement under K.S.A. 2016 Supp. 22-3716(c)(9). Therefore, the district court did not
abuse its discretion in revoking Jones' probation.

Affirmed.